The July 2022 guidance from the US Department of Education recognizes that sometimes some schools “informally issue or propose a disciplinary removal in response to a student’s disability-based behavior.” An example of this might be the school calling you to pick up your child who is having trouble staying on task in class because they have a disability that makes it hard for them to pay attention. Schools sometimes ask parents to take a child home for the rest of the day or to keep them home for more than one day without the child being officially suspended or anything done to address the child’s disability-related behavior through a 504 plan or an IEP.
The guidance explains that schools are required to not discriminate against children with disabilities and to ensure they receive a free and appropriate public education (FAPE). This means that when informal removals result in a significant change in placement, the school must comply with the evaluation, placement, setting, and procedural-safeguard requirements.
Schools should document any time a student is not receiving instruction. All informal removals due to behavior challenges should count toward the maximum of ten days students can be suspended before a team meeting with the parent to determine if the behavior is disability-related. If the school does not document this information, it could violate students’ rights to FAPE.
The guidance says that the Office of Civil Rights (OCR) “is aware that some schools informally exclude students, or impose unreasonable conditions or limitations on a student’s continued school participation, as a result of a student’s disability-based behaviors in many ways, such as:
- Requiring a parent or guardian not to send their child to, or to pick up their child early from, school or a school-sponsored activity, such as a field trip;
- Placing a student on a shortened school-day schedule without first convening the Section 504 team to determine whether such a schedule is necessary to meet the student’s disability-specific needs;
- Requiring a student to participate in a virtual learning program when other students are receiving in-person instruction;
- Excluding a student from accessing a virtual learning platform that all other students are using for their instruction;
- Informing a parent or guardian that the school will formally suspend or expel the student, or refer the student to law enforcement, if the parent or guardian does not: pick up the student from school; agree to transfer the student to another school, which may be an alternative school or part of a residential treatment program; agree to a shortened school day schedule; or agree to the use of restraint or seclusion; and
- Informing a parent or guardian that the student may not attend school for a specific period of time or indefinitely due to their disability-based behavior unless the parent or guardian is present in the classroom or otherwise helps manage the behavior (e.g., through administering medication to the child).
Depending on the facts and circumstances, OCR could find that one or more of these practices violate Section 504.”
If you believe your child’s school might discriminate against them through informal removals, we will support you in getting more information and looking at your options. We will help you advocate for what you think is best for your child. You can call us at 601-355-0915.